The latest ‘Discussion Paper’ towards a new Sri Lankan Constitution seeks to abolish the executive presidency, establish a new Constitutional Court, retain the strong fourth pillar institutions, and outline a compromise devolution scheme. Nevertheless, the provisions on symbolically significant issues, in particular the characterisation of the state, are hazy at best, and the overall drafting needs significant technical improvement. Crucially, the proposal has emerged at a time when the parliamentary reform coalition has essentially collapsed. While any hope for a new constitution depends on the outcome of the next national elections, there is a small chance that the current Parliament could enact changes towards a parliamentary system of government – writes Dr Welikala.

Introduction

Following the watershed presidential and parliamentary elections of 2015, the process of making of a new constitution for Sri Lanka began in 2016 when, by resolution, Parliament established itself as a Constitutional Assembly, sitting simultaneously. The business of the Constitutional Assembly was to be led by a Steering Committee chaired by the Prime Minister and comprising all parliamentary party leaders and other senior MPs. It was resourced by a Panel of Experts comprising academics and lawyers nominated by the parliamentary parties.

The Assembly also divided itself into subcommittees and reported on various areas in 2016, including fundamental rights and devolution. The Interim Report of the Steering Committee was published in late 2017. The Interim Report, reflecting a consensus of the politically representative Steering Committee, was to have been the basis on which the legislative drafting of a new constitution could begin. By 2017, however, due to deteriorating relations between the main parties within the governing coalition and between the President and the Prime Minister, the Interim Report reflected no coherent consensus.

In view of this, the Steering Committee then asked the Panel of Experts to formulate a Discussion Paper based on the Interim Report and the Subcommittee Reports, as a preliminary basis for evolving an agreed consensus. This Discussion Paper, often called ‘Draft Zero’, has been in existence for a while. It was meant to be tabled in the Constitutional Assembly in late 2018, but the constitutional crisis that engulfed the country in October prevented that. However, it had been leaked in the months preceding and was subject to wide discussion, especially hostile criticism from anti-reform commentators in the local press, while the government offered no counter-narrative and civil society proponents of reform were in the dark about its contents.

Even though the document is called a Discussion Paper, it is in form a preliminary draft of a new constitution.

The Prime Minister finally tabled the Discussion Paper along with certain other documents in the Constitutional Assembly on 11 January 2019. Even though the document is called a Discussion Paper, it is in form a preliminary draft of a new constitution, with draft articles setting out a near-comprehensive constitutional scheme. This scheme is a dramatic departure from the structure and character of the current 1978 Constitution, with the abolition of executive presidentialism its centrepiece. The following proposals for change are the most important.

The Nature of the State

Some of the most contentious issues in Sri Lankan constitutional reform debates concern the descriptive character of the state, and in particular whether it is described as unitary (which is symbolically essential for the majority Sinhala community) or federal (symbolically important for the principal minority Tamils), and whether the state is to be secular or whether Buddhism is to be given special recognition. The substantive aspects of internal territorial arrangements as well as the recognition of religion are often secondary in importance to the symbolic form in which these characteristics are given constitutional expression.

The Paper seeks to sidestep the controversies around the unitary/federal English descriptors by using two Sinhala and Tamil words in conjunction as substitutes. Accordingly, ‘Sri Lanka (Ceylon) is a free, sovereign and independent Republic which is an aekiya rajyaya / orumiththa nadu … In this Article, aekiya rajyaya / orumiththa nadu means a State which is undivided and indivisible…’ While the two terms are left undefined in English, ‘aekiya rajyaya’ means ‘unitary state’ in Sinhala, while ‘orumiththa nadu’ means ‘united country’ in Tamil. The reference to the country being undivided and indivisible in Clause 1 is reinforced by an express prohibition of secession in Clause 4, which states: ‘No Provincial Council or other authority may declare any part of the territory of Sri Lanka to be a separate State or advocate or take steps towards the secession of any Province or part thereof, from Sri Lanka.’

The Sinhala and Tamil terms describing the character of the state denote two quite different if related concepts.

The Paper thus seeks to enlist the Sinhalese by using their preferred descriptive term for the state and safeguards against secession, and assuage Tamil sentiments by the use of a considerably softer term that commits them merely to the unity of the state but presumably not a unitary structure of power. This seemingly ingenious solution to the unitary/federal problem, however, is unconvincing, because not only do the Sinhala and Tamil terms denote two quite different if related concepts – a ‘unitary state’ is materially distinct from a ‘united country’ – but also because it is a synthetic attempt to avoid dealing with a genuine question of constitutional substance around which there is a deep divide between the two main communities. Even if constitutional silence on the unitary/federal question was not an option, it would seem wise to have adopted a solution that looks less disingenuous. There are comparative examples in recent memory in which multilevel territorial systems have been created without the use of the unitary or federal labels, or have deployed them with more creativity than in traditional constitutions, which could usefully have informed the Sri Lankan drafters.

On Buddhism, the Paper suggests the retention of the current Article 9 of the 1978 Constitution, which gives to Buddhism a ‘foremost place’ and places a duty on the state to ‘protect and foster’ it. It also suggests an alternative formulation which retains the foremost place and the duty of the state in respect of Buddhism, but ‘while treating all religions and beliefs with honour and dignity, and without discrimination’. Both formulations afford Buddhism its special status subject to the guarantee of individuals’ fundamental rights to freedom of thought and religion, but the alternative formulation appears to enhance the respect accorded to minority religions. Given how ultrasensitive any attempt to alter the existing provision is within the majority community and especially the Buddhist clergy, however, even the modest reformulation suggested by the alternative wording may prove too much.

Devolution

The issues surrounding the devolution of power are some of the most contentious in Sri Lankan constitutional reform, as noted regarding the unitary/federal debate. Nevertheless – or perhaps because of that – the Paper adopts a cautious and incrementalist approach to the design of devolution in the future constitution. The provisions of the Paper on the Provincial Councils take as their starting point the existing framework of devolution under the Thirteenth Amendment to the 1978 Constitution. This is in itself noteworthy, because the Thirteenth Amendment has not previously been regarded as an acceptable basis by even moderate Tamil nationalists. Having adopted the Thirteenth Amendment as the basis, the approach seems to be aimed at repairing the anomalies of that framework with a view to enhancing devolution and minimising the institutional scope for recentralisation. Thus, for example, one of the main ways in which devolution has been clawed back under the Thirteenth Amendment – through the powers of the centrally appointed Governor to interfere in the provincial administration and legislative process – has been addressed in the Paper by either removing or clarifying the Governor’s powers, and thereby consolidating the autonomy of the provincial Board of Ministers and the Provincial Council.

Considerable attention has been paid to the controversial issues of devolution of police powers and state land.

An Advocate General as the chief legal officer of the Province (akin to the Attorney General at the central level) is a further useful innovation that has long been felt necessary in order to strengthen the Province’s legal capacity vis-à-vis the centre. The Chief Ministers’ Conference, which has been informal, ad hoc, and without much purpose in the past, is also institutionalised as a centre-provincial forum to discuss common concerns and policies as well as act as a dispute resolution body. The Paper’s provisions show that considerable attention has been paid to the controversial issues of devolution of police powers and state land. For opponents of devolution in the south who fear latent secessionism in the north even after the war, these are two of the key areas over which there should be no devolution to the Provinces. The Paper outlines frameworks about how both police powers and powers over state land can be exercised in cooperation between the centre and the Provinces, and evinces considerable effort at finding an appropriate balance between the interests of both. Arguably, in the desire to allay southern fears, the resultant framework for the devolution of police powers in particular might be actually less than what is provided under the Thirteenth Amendment (which is based on the Indian federal model), although that aspect of the Thirteenth Amendment has never been implemented.

The Paper contains no indication as to the distribution of competences between the centre and the provinces.

One of the Paper’s key omissions in relation to devolution is the absence of any indication as to the distribution of competences between the centre and the provinces, although it is known that the Panel of Experts has discussed this at length. The reason for the omission appears to be that there is no political agreement as to whether there should be two lists of relatively exclusive powers between the two levels, or whether there should be three lists (Reserved, Provincial, and Concurrent) as in the Thirteenth Amendment. The Concurrent List in the Thirteenth Amendment has been abused in the past, with it essentially being treated as an extension of central competences. This has generated opposition to the wider concept of concurrent powers on the part of Tamil parties. The scepticism is understandable, but it would be important for Sri Lankan drafters to recognise that a genuine framework of concurrency is not only workable and appropriate, but also consistent with the design of multilevel systems in comparable countries, which eschew the older method of trying to define exclusive spheres in the context of the realities of modern governance and the needs of a developing society.

Fundamental Rights, Duties, and Directive Principles of State Policy

One of the longest chapters in the constitutional scheme of the Paper is the one on fundamental rights, which has also to be read in conjunction with the separate chapters on language rights, and on directive principles of state policy and fundamental duties (and another on citizenship rights). These three chapters are directly reproduced in the Paper from the recommendations of the Constitutional Assembly’s Sub-Committee on Fundamental Rights, which reported in 2016. Fundamental rights – covering all three generations of international human rights and more – are enumerated at great length as well as elaborated in minute detail. Each right has its own restrictions framework, except for the common requirements of prescription by law and necessity in a democratic society. Civil and political rights are intermixed with lavish socioeconomic entitlements, as well as other protected categories, such as children, the elderly, the disabled, workers, consumers, the environment, and sustainable development.

The socioeconomic and other third generation rights seem to have been designed more with idealism than practicality in mind.

The greater elaboration and expansion in scope of civil and political rights is to be welcomed, as well as the new framework for states of emergency which introduces the concept of non-derogable rights. However, the socioeconomic and other third generation rights seem to have been designed more with idealism than practicality in mind. It is an approach which seems to consider every area of public policy and legislation to be a matter of justiciable human rights. It is difficult to imagine how such an extravagant wish-list of claims on the state and its resources might be subjected to effective judicial enforcement. A bill of rights that aspires to unattainable standards of human rights perfection could do more harm to the future legitimacy of the constitutional order than one which has more modest but realistic goals. Given Sri Lanka’s history of conflict and authoritarianism, the strengthening of civil and political rights is commendable. But these improvements could be vitiated by a bill of rights that is made largely unenforceable because of its more unrealistic aspirations. While comparative experience has shown that justiciable socioeconomic rights can be constitutionalised, regard must surely be had for recent scholarship that points to crucial design considerations that must be taken into account, in light of the experience of pioneering jurisdictions such as Colombia and South Africa, if the objectives of human dignity and poverty alleviation underlying these rights are to be progressively and meaningfully realised. There is little evidence that any thought has gone into these matters, rather than a simplistic desire to put as large a catalogue of rights into the text as possible, presumably in the hope that that in itself will have a transformative effect in redistribution. Such hopes are likely to be frustrated, and worse, adversely affect the prestige and legitimacy of the future bill of rights.

A similar fate may await the statement of the directive principles of state policy and citizens’ duties. While these are not per se justiciable, the chapter requires the judiciary, the legislature, and the executive to be guided by them in terms that are arguably stronger than the provisions of the current constitution. But again, the quixotic nature of at least some of the provisions is cause for concern. For example, it is a duty of every citizen to ‘value and preserve the rich heritage of our composite culture’. There is also a directive principle that, ‘It is a fundamental duty of the State, to refrain from promoting in any manner ethno-nationalism in the country directly or indirectly. The State shall promote civic nationalism and liberal patriotism based on most enlightened religious and secular principles, fundamental human rights and cosmopolitanism’. Nebulousness aside, references to a unitary ‘composite culture’ in a deeply pluralistic society, and heavily ideological statements about the nature of collective identity in a society where ethnicity is widely resonant, raise more questions than answers about this model of constitutional identity. It is not at all clear what motivated the drafters, and on what basis these fundamentally contestable formulations where chosen for inclusion in a future constitutional text.

The Executive

The most vivid change proposed by the Paper is the abolition of the executive presidential system under the 1978 Constitution. For many who voted in the regime changing 2015 elections, the abolition of presidentialism was the main attraction. The concentration and centralisation of power under Sri Lanka’s hyperpresidential system had led to abuses under all presidents, but the uncontrolled excesses of the Rapapaksa presidency (2005-2015) convinced many that the system itself needed ending if constitutional democracy and good governance were to be restored. While the Nineteenth Amendment to the 1978 Constitution enacted by the new government in 2015 introduced a number of significant limits on presidential powers, it did not go the whole way. The Paper’s scheme discharges the mandate of the government elected in 2015 by proposing complete abolition.

The changes would effectively establish a parliamentary system of government.

The proposed scheme envisages a Westminster-style executive, with a titular President as the Head of State, but with some unorthodox features that strengthens the position of the Prime Minister. The President would be elected by both houses of Parliament by simple majority, or alternatively, on the basis of the exhaustive ballot system (this is to be decided). The presidential term would be five years, renewable once. A person who has been twice elected to the office would be disqualified from holding the office again. Although not explicit, the term limit appears to be prospective and would not include terms served as president before the enactment of the constitution. The President discharges the functions of a Head of State in a parliamentary system, including as Commander-in-Chief, presiding at ceremonial sittings of Parliament, summoning and dissolving Parliament in the manner regulated by the constitution, appointing the Prime Minister and other Ministers, and other ceremonial duties. The Paper also expressly provides that the President shall not hold any other public office, and that during his tenure of office, the President shall not be an office bearer of any political party and shall not be involved in party politics.

The crucial provision is Clause 79: ‘The President shall always, except in the case of the appointment of the Prime Minister or as otherwise required by the Constitution, act on the advice of the Prime Minister’. The President can only appoint, remove or reshuffle all other members of the government on the advice of the Prime Minister. The removal of direct election of the President, and the requirement of prime ministerial advice as the basis for most if not all presidential acts, are the twin provisions that transform the presidential state into a parliamentary state. The locus of executive power thus becomes the Cabinet of Ministers, of which the Prime Minister is the Head, charged with the direction and control of the government and collectively responsible to Parliament.

The legislative reforms anticipate a mixed electoral system combining plurality and proportional systems.

While according to the formal provision, the President appoints as Prime Minister the Member of Parliament who in the President’s opinion enjoys the confidence of Parliament, this power is much more circumscribed than in other more convention-dependent Westminster systems. The President has no discretion in the appointment where a political party has obtained more than 50% of the seats in Parliament, and that party had nominated its prime ministerial candidate before the election, implying that nomination of a prime minister would not be mandatory before the elections. The President’s power of appointment is also limited by the requirement of a positive vote of confidence in the Prime Minister after each election. If the sitting Prime Minister loses the vote of confidence, then Parliament elects his successor, who must be appointed by the President, possibly implying an exceptional constructive vote of no confidence. If not, the appointment is deemed made at the end of a period of seven days. The Prime Minister ceases to hold office only upon being defeated in a general election or a vote of no confidence in the whole government, upon his death, resignation, or on ceasing to be a Member of Parliament. By these provisions, any residual presidential discretion over the removal of a Prime Minister enjoying the confidence of Parliament is completely eliminated.

The Legislature

A bicameral central legislature is contemplated, although confusingly the lower house is known as ‘Parliament’ and the upper house as the ‘Second Chamber.’ A Parliament of 233 members would be elected for a fixed term of five years, and this principle is strongly reinforced. An early dissolution may take place only if Parliament requests the President to do so by a two-thirds majority. In the first two years of Parliament’s term, the President may dissolve Parliament only if the government is unable to pass a budget after three attempts. After two years, this is reduced to two attempts. There are no specific rules for instances where parliament cannot form a government. Parliament adjourns from time to time by resolution or according to Standing Orders, with no role for the President, and the President’s power to prorogue Parliament has been entirely removed.

Members of Parliament would be elected according to a Mixed Member Proportional (MMP) or Additional Member System (AMS), and there is a great deal of detail in the Paper about the electoral system since the Steering Committee devoted much time to this in previous years. Thus 60% of MPs would be elected from electoral constituencies on a first-past-the-post basis, while the remaining 40% would be elected on a proportional representation basis using the Province as the territorial unit.

The most noteworthy innovation in respect of the judicature is the proposed introduction of a seven-member Constitutional Court.

The Second Chamber would consist of 55 members. Each of the nine Provincial Councils elects a Provincial Delegation of five to the Second Chamber, which may include the Chief Minister (but not other provincial ministers). The delegation may collectively but not individually be recalled by a Provincial Council. The other ten members of the Second Chamber are elected by Parliament. They must be persons of eminence and integrity who have distinguished themselves in public or professional life, and are not Members of Parliament or of Provincial Councils. Thus, the proposed Second Chamber is a house both of provincial representation in the central legislative process, as well as, to a lesser extent, a forum of independent expertise. Both are important rationales in the Sri Lankan context. The powers of the Second Chamber are only very sparsely mentioned. Parliament will ‘refer’ Bills to the Second Chamber which has one month to ‘consider’ them. When the Second Chamber returns Bills to Parliament, it may specify ‘areas’ which require ‘reconsideration’ and Parliament shall give ‘due consideration’ to the views of the Second Chamber. No more is said of the relationship between the two chambers than this, and this is clearly an area that requires much greater elaboration.

The Judiciary

The most noteworthy innovation in respect of the judicature is the proposed introduction of a seven-member Constitutional Court, with members drawn from the judiciary, legal practice or legal education with specialised knowledge or experience in constitutional law. The Court has jurisdiction over the interpretation of the constitution, the judicial review of Bills as well as Acts of Parliament and Provincial Statutes, the resolution of disputes between the central government and the Provinces or between Provinces, and any other jurisdiction that may be conferred on it by law. The introduction of comprehensive constitutional review is a significant advance, in that the 1978 Constitution has only recognised the Supreme Court’s jurisdiction over pre-enactment review of Bills, and this has long been seen as a major setback for constitutionalism.

The Constitutional Council and Independent Bodies

Aside from devolution, de-politicisation is the other key democratisation challenge that underpins all constitutional reform arguments in Sri Lanka. The preferred framework for this is through the establishment of various independent commissions to oversee key areas of state service provision (such as the public service, the judiciary and the police), but also others that monitor and perform quasi-judicial functions (such as over human rights and bribery and corruption). At the apex is the Constitutional Council, which would be an independent body of mixed political and civil society representation that either recommends or approves appointments to the independent commissions and other high posts (such as senior judges and the head of police). The essential model in relation to this method of de-politicisation, at the heart of which is the reduction of especially the President’s unilateral powers of appointment, was established by the Seventeenth Amendment to the 1978 Constitution, but this was eviscerated by the Eighteenth Amendment enacted by the Rajapaksa regime in the aftermath of the war. The re-establishment of these controls was one of the key elements of the good governance mandate of the 2015 elections, and accordingly, the Nineteenth Amendment reintroduced the Constitutional Council and restored the independence of the commissions. Given that the impartiality and independence of state institutions in general and the police and judiciary in particular played a demonstrable role in checking the attempt at democratic backsliding in the constitutional crisis of 2018, the Nineteenth Amendment is widely felt to be crucial to the resilience of constitutional democracy in Sri Lanka. The Paper therefore carries this reform forward into the new constitution, but with some small changes. When the Nineteenth Amendment reintroduced the Constitutional Council, Parliament was only able to agree that it would have three civil society members, whereas under the Seventeenth Amendment, there were five civil society members. The Paper again proposes five civil society members, and the Speaker of the Second Chamber is added to its membership.

Conclusion

The Discussion Paper of the Panel of Experts is clearly an internal document meant to serve evolving discussions within the Constitutional Assembly process. It is uneven in its treatment of subjects (e.g., the provisions on fundamental rights and the electoral system are very long, while others such as the relationship between the two chambers of the central legislature are very short), many matters still require political decisions of principle, and both its arrangement and its detail would have to be significantly improved if it goes forward as a basis for legislative drafting. Untidiness and technical questions aside, however, the much more serious problem now for the Sri Lankan constitutional reform process is political.

The reform coalition has completely broken down, and there is no longer the easy two-thirds majority.

The reform coalition has completely broken down, and there is no longer the easy two-thirds majority the coalition commanded at the commencement of the current Parliament. The economy is in the doldrums, and the attention and priorities of the government have of necessity shifted from reform to the economy. The figurehead of the 2015 reform mandate, President Maithripala Sirisena, has transmogrified into every reformist’s worst nightmare. On the night of 26 October 2018, the President precipitated a major constitutional crisis by acting unconstitutionally to dismiss his erstwhile ally, Prime Minister Ranil Wickremesinghe, who enjoyed the confidence of Parliament, and to universal shock and surprise, appointing former President Mahinda Rajapaksa as the new Prime Minister. When Parliament consistently refused confidence to the President’s alternative appointment as Prime Minister, he attempted to dissolve Parliament, again unconstitutionally. Parliament held out against this attempted abuse of presidential powers, as did the courts, with both the Supreme Court and the Court of Appeal refusing to accept the constitutional validity of the presidential actions. Due to the legislative and judicial institutions effectively checking the President, the latter was forced to back down and constitutional rule was restored with the reinstatement of Wickremesinghe in December.

Despite the collapse of the reform coalition, there is a small chance that this Parliament may yet enact a constitutional amendment with the sole purpose of abolishing the executive presidency.

The crisis demonstrated both the weaknesses and the strengths of Sri Lanka’s constitutional democracy. That a President felt able to act so egregiously contrary to the constitution showed the potential for democratic backsliding that remains inherent in the political culture. Yet the firm resistance against unconstitutional behaviour shown by Parliament, political parties, the courts, civil society, and social media activism, also demonstrated the constitutional resilience of Sri Lanka’s political system. That being said, the crisis and President Sirisena’s behaviour have sounded the death knell for any prospect of a new constitution in the current Parliament. In spite of emerging victorious from the attempted constitutional coup against him, Prime Minister Wickremesinghe has shown no initiative or leadership in re-galvanising the reform project. Amidst a deepening economic crisis, instability and uncertainty stalk politics.

In this context, it seems that the task of enacting an entirely new constitution will have to await the next national elections and a new Parliament. If another reform coalition similar to 2015 returns to power under Wickremesinghe’s leadership, then perhaps the work done in this Parliament, including the Panel of Experts’ Discussion Paper, might serve as the basis for further reform. In the meanwhile, there is a (very small) glimmer of hope that this Parliament can yet enact a constitutional amendment with the sole purpose of abolishing the executive presidency. Virtually every party in Parliament including Rajapaksa’s faction have stated their support for this reform. It is to be seen in the coming months if some confluence of interests amongst the parliamentary parties will see this change through, on grounds of expediency and self-interests if not on democratic ideals and principles.